Afua Hirsch wrote in yesterday’s Guardian that the role of Attorney General is unfit for purpose and unsustainable:
In many ways the problem is as simple as this: the job description just does not work. The attorney general is tasked with the provision of independent advice to the government as its chief legal adviser, alongside the political duties of being a member of the government, with superintendence of the prosecuting authorities thrown in for good measure. It is a combination so conceptually challenging that even the office-holders struggle with it.
That’s fair enough as far as it goes. But she bases much of her criticism on the controversies that dogged Lord Goldsmith during his tenure: his advice on the invasion of Iraq, of course; the SFO’s decision not to prosecute BAe for bribery in the al Yamamah case; and “cash for honours”.
The problem is, even if you think his conduct on these three matters shows Lord Goldsmith was the biggest fool and knave ever to hold the office (not my view), none of that calls into question the office itself. Most people have made up their minds that Lord Goldsmith was wrong about Iraq (I’m not convinced he was); but anyway, a non-political civil servant would have been just as capable of being wrong as he was. If anyone thinks government lawyers are immune from ministerial pressure, then they’ve not seen law in government from the inside.
Afua Hirsch’s second indictment of Lord Goldsmith – BAe – proves the point, since the decision to drop the prosecution was actually taken not the Attorney but by the SFO’s director, the civil servant Robert Wardle, who was strongly influenced by the PM’s view on national security. I got that wrong myself at the time, but I did make the point that it was right that someone could be summoned to Parliament for account for the decision immediately. That’s what the Attorney is for.
Finally, I have to defend Lord Goldsmith (who was once my ministerial boss, perhaps I should declare) over “cash for honours”. Yes, his intervention “linked” him to the story. But in fact he sought that injunction at the request of the police, not Downing Street. Anyone who thinks that was an attempt to help Tony Blair has simply forgotten what “cash for honours” was about; the real scandal would have been if Goldsmith had not sought the injunction. Yes, it would have been problematic had he been forced by law to take the decision to prosecute, but that never happened. And he came up with a reasonable solution to that problem – he said he’d instruct external counsel after consulting the opposition, and publish the advice if he decided against prosecution. Whatever you think of Iraq, it really is difficult to accuse him of doing anything wrong over cash for honours.
The current Iraq inquiry may judge Lord Goldsmith. History certainly will. And most people have judged him in their own minds already. But I don’t think it makes sense to turn judgment of the man into an argument for tinkering with the office he used to hold. That’s the sort of consitutional whimmery that makes people think PR would solve the MPs expenses issue.
I agree. Moreover, if they made the AG a separate civil servant the result would be simply that other members of the cabinet with legal experience would end up filling the practical role sub rosa, as it were.
There is perhaps an argument for moving some of the roles filled by the AG (eg in my own field the charities role, but the charity commission now does a lot of that anyway -and is thought by many to be too political -) to eg the Treasury Solicitor and the DPP. But someone is ultimately going to end up giving the cabinet advice on policy, particularly major policy issues like this, from the inside. It might, I suppose, be better if in difficult cases they regularly sought outside advice from leading counsel as well before taking their own view.
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Yes – I’m certainly not saying the job as currently constituted is unimprovable, and I’m not opposed to all change. But I do think much of the impulse to sweeping reform is in truth an argument with Lord Goldsmith, especially his Iraq advice, continued by other means. I reckon Afua’s article exemplifies that, actually, relying as she does on criticisms of him rather than Baroness Scotland.
I can see arguments that the charity law role and superintendence of prosecutors could and perhaps should be carried out by people focusing only on those tasks. That’s fair enough – lightening the load of the Law Officers. But either the Charity Commission or the CPS etc. are just left to themselves, in which case there’s an accountability gap compared to today (and by the way more work would be loaded on the Charity Commission that’s currently done for the Attorney by TSol) or someone else is given her old roles. Critics don’t often descend to the details of any of that.
Ministers do often get outside counsel’s advice – and the Attorney often does herself. I’d say in my experience that both government lawyers and ministers tend on average to perceive independent counsel’s advice as having a bias towards “pessimism” from the government point of view. I realise some people will snort at that, and think that’s as it should be – maybe. Remember, though, that government isn’t always being challenged by wronged individuals – sometimes the challenge comes from rich people who want to pay no tax, firms who want to pollute and the European Commission, which isn’t always right and saintly either. It’d often be wrong for the government to take an unduly soft line on defending taxpayers’ interests, but always following independent counsel’s advice would, in my experience, tend to have that effect.
I suppose what I’m saying is that ministers (just the same as business people and campaigners like Liberty) have a legitimate need also to rely on legal advice from people they know are “on their side”, whether professionally, like government lawyers, or both professionally and politically, like the Attorney. Someone like that is always going to be turned to, in truth, and there’s nothing wrong about that. Should it be (a) a politically accountable minister (b) civil servants with a duty of impartiality (c) completely independent outside lawyers (d) legal “special advisers” appointed personally by ministers or (e) ministers’ lawyer mates, called in ad hoc or informally? And how are these people to be accountable to the public? These are the real issues.
At the moment we have a mix of (a), (b) and (c), and to be honest I do think that mix is a good one: I think accountability would be weakened if (a) was done away with entirely, and all experience of government would be thrown away if you relied only on (c) and/or (d). That’s important as a lot of government legal work is actually stuff that’s been gone over before years ago, or is very like something that went before, or has been going on for many years.
I’m not against (d) in principle – I think true specialists like that are more useful to the public as special advisers than are shadow press officers like Damian McBride – but I do think it’d be a problem if political but unaccountable lawyers like that had too much unchecked power in government.
“a non-political civil servant would have been just as capable of being wrong as he was.”
You are somewhat ingenious in suggesting that the only other alternative would be for the AG to be a civil servant. The AG should be made immune from political pressure and this could be done only by making the office holder to be neither a politician nor a civil servant.
This, ultimately, becomes a discussion about personal standards – intgegrity, probity, honesty and – yes – ability. Goldsmith should be judged by those criteria, not whether he is/was politically acute.
However one looks at this, ordinary people really do not accept that the AG is fully independent of the government which he/she supports politically and which made his/her appointment. The appearance is wrong.
Interestingly, we had the Appellate Committee of the House of Lords which was undoubtedly fiercely and fearlessly independent of both the executive and the legislature but it had to change because of appearance.
Appearance and perception matter a great deal. Perhaps more than they should. However, change will have to come just as it did with the creation of the Supreme Court.
By the way, I was pleased to see the Justices of the Supreme Court at the State Opening of Parliament. Their attendance served to emphasize the links of all branches of government to the Crown.